Posted by
Kenneth Hanson on Sunday, October 26, 2008 11:18:49 PM
I did some looking into this topic of “empathy”. Barack Obama also talks a lot about “heart” when considering whether a judge is suitable for the Supreme Court. Senator Obama voted against confirmation for both Justices Roberts and Alito. Chief Justice Roberts is as judicially qualified and impressive a legal thinker as anyone in a very long time.
Prior to his confirmation vote, Obama issued a press release that included the following:
Part of the culture of the University of Chicago Law School faculty (where Obama taught for 10 years) is to maintain a sense of collegiality between those people who hold different views. What engenders respect is not the particular outcome that a legal scholar arrives at but, rather, the intellectual rigor and honesty with which he or she arrives at a decision.
Given that background, I am sorely tempted to vote for Judge Roberts based on my study of his resume, his conduct during the hearings, and a conversation I had with him yesterday afternoon.
There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.
Wow, it sounds like the description of a man who should be confirmed by affirmation. Then comes the ever predictable “Obama but”. Obama states his concern that there are a small number of cases where “the constitutional text will not be directly on point.” Here is where Obama’s “empathy” and “heart” come into play. He cites several examples such as supporting a “general right to privacy” (nowhere in the Constitution) and its application to abortion, and using the Commerce Clause to empower “…Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce…”. Many hold that Congress has severely abused the Commerce Clause to justify legislation that goes far beyond the framers’ intent.
The “constitutional text will not be directly on point” is code for the Constitution is silent on the subject. If the Constitution is silent, then Obama’s view is that judges should apply their personal ideology to make a decision in the name of “empathy”. This often translates into liberal social policies being enacted by the judiciary that advocates have not been able to accomplish legislatively. For example, in a death penalty case this year, Justice Anthony Kennedy considered his “own experience” when interpreting the Eighth Amendment. Are you kidding me? What kind of self—aggrandized power is that?
Deborah Malley, writing for the Heritage Foundation, states the following:
Yet it is clear that Americans do not want the personal opinions of nine unelected judges “shaping” their destiny. A recent survey conducted by the Polling Company on behalf of the Federalist Society found that a whopping 71 percent of likely Ohio voters want the next president to nominate Supreme Court justices who will “interpret and apply the law as it is written and not take into account their own viewpoints and experiences.”
Judges should not be selected on whether they are liberal or conservative. That is a complete misunderstanding of the judicial process. In no way do I believe that McCain would nominate judges based on being politically conservative. I believe he would follow the model he has consistently stated and followed in his career as a Senator: to select judges based on their ability to put political preferences aside and interpret the Constitution and laws based on their original meaning.
Joe Biden’s statement in the VP debate that ideology is important in evaluating judges, and Obama’s statements that empathy must be applied when the Constitution is silent [read “make it up”], confirm my worst fears. Obama rejects that some cases are not constitutional issues, but solely legislative issues. He also believes that parts of the Constitution should be stretched to their tangential limit, far beyond the framers’ intent, to justify social policies.